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2013 DIGILAW 820 (MAD)

Meera Bai v. K. P. Arumugham

2013-02-08

K.K.SASIDHARAN, R.BANUMATHI

body2013
JUDGMENT R. Banumathi, J. 1. These intra Court appeals are preferred against the order in (i) O.A.No.794 of 2006 in C.S.No.761 of 2006 dismissing the application filed by the Plaintiffs and declining to grant injunction restraining the Defendants from interfering with the Plaintiffs lawful possession and enjoyment of the suit properties and to collect the rents from the existing tenants or by interfering with the 1st Plaintiff's lawful right to do and perform Kandasasti poojas and connected poojas in “Kanda Kottam” out of the rental income from two shops of the suit properties as per the Will dated 09.12.1982 and (ii) O.A.No.926 of 2006 in C.S.No.877 of 2006 dismissing the application filed by 1st Defendant-K.P.Arumugam and declining to grant injunction restraining Karuppasamy (16th Defendant in C.S.No.877 of 2006) from in any manner alienating or encumbering the “B” schedule property described in the schedule. For convenience, the parties are referred as per their array in C.S.No.761 of 2006. 2. Brief facts:- Common ancestors viz., (i) Kandasamy Chettiar; (ii) Subbaraya Chettiar; (iii) Murugappa Chettiar and (iv) C.Arumuga Chettiar owned vast properties together with the properties consisting four godowns and two shops at Door Nos. 268, 269, 270, 271, 272 and 273, Rasappa Chetty street (Gujjili street), Chennai-3. C.Arumuga Chettiar had two sons viz., Mohanasundaram and Loganathan. 3. Case of Plaintiffs is that as per the Will dated 09.12.1982 executed by C.Arumuga Chettiar, the Plaintiffs are entitled to succeed to the estate of C.Arumuga Chettiar in respect of schedule mentioned properties viz., two shops in old Door Nos.269 (New No.154) and 272 (New No.155), Rasappa Chetty Street, Chennai-3 and four godowns in premises in Old Door Nos.268 (New No.153) and 270 (New No.154) 271 (New No.155) and 273 (New No.154), Rasappa Chetty Street, Chennai-3.In respect of validity of the Will, T.O.S.No.20 of 2004 was filed. By the order dated 05.01.2008, probate was granted in respect of Schedule I to III and V mentioned in the Will. Defendants have no manner of right, title or interest in the suit properties. 1st Defendant – K.P.Arumugam falsely claiming himself to be the landlord of the suit properties had let out the properties to tenants and illegally collected rents from third parties, lessees and tenants as if he is the landlord of the suit properties. 1st Defendant has no right to lease out the suit properties to third parties. 1st Defendant – K.P.Arumugam falsely claiming himself to be the landlord of the suit properties had let out the properties to tenants and illegally collected rents from third parties, lessees and tenants as if he is the landlord of the suit properties. 1st Defendant has no right to lease out the suit properties to third parties. 1st Plaintiff-Meera Bai is the daughter-in-law of the testator of the Will and as per the Will, 1st Plaintiff's family alone has to perfom Kandasasti pooja and connected poojas in “Kanda Kottam” temple. But the 1st Defendant is attempting to interfere the 1st Plaintiff in doing the poojas contrary to the terms of the Will. Therefore, Plaintiffs have filed the suit – C.S.No.761 of 2006 for permanent injunction restraining the Defendants their men, servants and agents from interfering with the Plaintiffs' lawful possession and enjoyment of the suit properties and Plaintiffs' right to lease out the suit properties and also from interfering with the Plaintiffs' right to perform Kanda sasti pooja and connected poojas in Kanda Kottam out of the rental income from the suit scheduled two shops. 4. 1st Defendant – K.P.Arumugam and others have filed C.S.No.877 of 2006 for partition of the suit properties into two shares and allocate one share to them and the remaining one share to the Plaintiffs – Meerabai and family. It is the case of 1st Defendant that the suit properties belong to common ancestors and that there was Koorchit – Silasasanam on 17.10.1866 in the subject matter of the properties and for conducting Soorasamharam in Kandasasti festival in the “Kanda Kottam”. According to Defendants, in contravention of the Koorchit, one of the legal heir of C.Poorura Chettiar had executed a self styled Will dated 19.01.1924 and the said Will was not probated when the suit properties were inherited by C.Arumugam. In contravention of the Koorchit and the said Will dated 19.01.1924, C.Arumugam executed self styled Will dated 09.12.1982 and only K.P.Arumugam is in management of the suit properties and conducting Kandasasti festival in Kanda Kottam from 1975 onwards. C.Arumugam died on 04.08.1985 and without impleading the legal heirs, 1st Plaintiff – Meerabai filed O.P.No.851 of 1992 in respect of house, building and premises in Door No.19, (Old No.39), Mela Mada Street, Tiruporur and obtained probate order on 03.02.1993. C.Arumugam died on 04.08.1985 and without impleading the legal heirs, 1st Plaintiff – Meerabai filed O.P.No.851 of 1992 in respect of house, building and premises in Door No.19, (Old No.39), Mela Mada Street, Tiruporur and obtained probate order on 03.02.1993. Stating that K.P.Arumugam and his family are entitled to share in the properties, K.P.Arumugam and others have filed suit C.S.No.877 of 2006 for the following reliefs:- (i) Partition of the suit properties into two shares and allocate one share to K.P.Arumugam family; (ii) Permanent injunction restraining 1st Plaintiff and others from interfering K.P.Arumugam and family's possession and enjoyment of the suit properties of the allocated share; (iii) Declaration that K.P.Arumugam as a senior most male member of the family has a right to perform Soorasamharam in Kandasasti festival at Sri Muthukumarasamy Devastanam also known as Kandasamy temple, Rasappa Chetty street, Chennai-3 and – (iv) Declaration that the sale deed executed by 1st Plaintiff and others infavour of P.Karuppasamy as null and void and not binding on them. 5. Along with C.S.No.761 of 2006, Plaintiffs have filed O.A.No.794 of 2006, seeking interim injunction in line with the reliefs sought for in the suit. In C.S.No.877 of 2006, K.P.Arumugam and others have filed O.A.No.926 of 2006, seeking interim injunction restraining P.Karuppasamy (16th Defendant therein) from in any manner alienating or encumbering the schedule "B" property. Parties have also filed number of other applications. 6. Learned single Judge dismissed O.A.No.794 of 2006 in C.S.No.761 of 2006 holding that pending suit, no relief could be granted. Insofar as performance of Kandasasti festival is concerned, learned single Judge held that the Assistant Commissioner, HR & CE is acting as Fit Person and regulating the proceedings and the said arrangement need not be disturbed. Pointing out that the suits are pending and in respect of alienation of "B" schedule property no relief need be granted, by common order dated 15.09.2009 the learned single Judge also dismissed O.A.No.926 of 2006. By the said common order (15.09.2009), the learned single Judge dismissed all other applications filed by the parties. 7. We have heard Mr.K.Venkatraman, learned counsel for Appellants in O.S.A.No.343 of 2009 and Respondents 2 to 4 in O.S.A.No.454 of 2009. We have also heard Mr.K.Mohanamurali, learned counsel for Respondents in O.S.A.No.343 of 2009 and Appellants in O.S.A.No.454 of 2009. We have heard Mr.G.Suryanarayanan, learned counsel for 1st Respondent in O.S.A.No.454 of 2009. 8. 7. We have heard Mr.K.Venkatraman, learned counsel for Appellants in O.S.A.No.343 of 2009 and Respondents 2 to 4 in O.S.A.No.454 of 2009. We have also heard Mr.K.Mohanamurali, learned counsel for Respondents in O.S.A.No.343 of 2009 and Appellants in O.S.A.No.454 of 2009. We have heard Mr.G.Suryanarayanan, learned counsel for 1st Respondent in O.S.A.No.454 of 2009. 8. Since the dispute pertains to collection of rent from the suit properties in the trial Court, on 20.11.2007 the following order was passed:- (i) The 1st Respondent/1st Defendant is directed to deposit Rs.4,33,603/- to the credit of suit in C.S.No.877 of 2006 within a period of two weeks. (ii) From out of the said sum of Rs.4,33,603/-, the First Plaintiff-Meera Bai is permitted to withdraw 50%. (iii) The First Respondent/First Defendant is permitted to withdraw the balance 50% for the purpose of equal distribution amongst the other Respondents. (iv) The First Respondent/First Defendant is directed to pay Rs.10,000/- to the First Plaintiff every month on or before 15th of every succeeding English Calendar Month. (v) Direction (iv) shall take into effect from the month of December 2007. As per the said order, Rs.4,33,603/- has been deposited. Out of which, 1st Plaintiff – Meera Bai withdrew 50%. 9. Grievance of Appellants is that without any right K.P.Arumugam and others are collecting the rent and that K.P.Arumugam and others are not paying share of rent to Meerabai and others. Further grievance of Appellants is that inspite of the order dated 20.11.2007, they have not complied the same. It was further submitted that Appellants are also not permitted to celebrate Kandasasti festival. 10. Per contra, learned counsel for K.P.Arumugam and others submitted that only less rent being paid by the tenants. It was stated that for non-payment of property tax, distraint warrant was issued restraining the tenants from paying rents to the landlord and K.P.Arumugam and his family are not collecting the rent from the tenants. 11. The matter was heard on various dates. Having regard to the dispute between the parties in the matter of collection of rent and in view of the stand taken by the Respondents, we have directed the Corporation of Chennai to file a report as to whether the Corporation had issued distraint warrant restraining the tenants from paying rent to the landlord and if so, what is the amount due and all other relevant details. Accordingly, the Corporation has filed its report. Accordingly, the Corporation has filed its report. As per the report of the Corporation, the name of tenants and the rent collected by the Corporation and the rent quoted by the 1st Respondent are detailed as follows:- The Corporation has further stated that the property tax payable and also due from the above three premises are as under:- 12. Learned counsel for Respondents has submitted that as against the enhancement of the property tax, 1st Respondent has already preferred appeal before the Taxation Appellate Tribunal and the same is pending. Therefore, the property tax now stated to be due by the Corporation is under challenge. 13. Insofar as M/s.Swaminathan Stores is concerned, it is stated that it is a sub tenant under M/s.K.K.Catering and the sub tenancy of M/s.Swaminathan Stores has never been recognised. Per contra, the learned counsel for Appellants' disputes that M/s.Swaminathan Stores is a sub tenant under M/s.K.K.Catering; but according to Appellants it is a regular tenant. 14. Without expressing any opinion on the merits of the matter, by order dated 30.11.2012, we have directed the tenants named in the report of the Corporation to deposit the rent to the credit of C.S.No.877 of 2006, commencing from the month of November 2012. We have also directed that the rent payable for the month of November, 2012 shall be deposited on or before 10.12.2012. Thereafter, for the subsequent months, tenants shall deposit the rent to the credit of the suit in C.S.No.877 of 2006 on or before 10th of every succeeding calendar month. 15. In compliance with the order dated 30.11.2012, the tenants have deposited the rent as follows:- 16. Since the suits – C.S.Nos.761 of 2006 and 877 of 2006 are pending and which are hotly contested by the parties, without expressing any opinion on the merits of the matter, it would be appropriate to permit the Appellants to withdraw two months rent (November & December 2012) deposited by M/s.Swaminathan Stores (whose tenancy is disputed) i.e. Rs.14,000/- (monthly rent at Rs.7000/-) lying in Court deposit . Likewise, the Respondents are permitted to withdraw two months rent (November & December 2012) deposited by M/s.R.R.Herbals (monthly rent at Rs.4000/-); P.R.Palani chetty (monthly rent at Rs.1000/-) and M/s.Ayyappa Enterprises (monthly rent at Rs.1500/-) November 2012 December 2012 i.e. Rs.13,000/-. Likewise, the Respondents are permitted to withdraw two months rent (November & December 2012) deposited by M/s.R.R.Herbals (monthly rent at Rs.4000/-); P.R.Palani chetty (monthly rent at Rs.1000/-) and M/s.Ayyappa Enterprises (monthly rent at Rs.1500/-) November 2012 December 2012 i.e. Rs.13,000/-. Insofar as the rent amount deposited by M/s.Best Buy Traders (monthly rent at Rs.6000/-) and M/s.Saravana Steel Traders (monthly rent at Rs.3000/-) are concerned, the same is ordered to be kept in Court deposit. 17. M/s.Swaminathan Stores shall deposit the rent due for the month of January 2013 to the credit of C.S.No.877 of 2006. We also direct M/s.R.R.Herbals; P.R.Palani chetty and M/s.Ayyappa Enterprises to deposit the rent due for the month of January 2013 to the credit of C.S.No.877 of 2006. On such deposit, the Appellants and Respondents respectively are permitted to withdraw the same as indicated in Para (16). It is further directed that M/s.Swaminathan Stores shall pay the rent directly to the Appellants, commencing from February 2013. Like wise, M/s.R.R.Herbals; P.R.Palani chetty and M/s.Ayyappa Enterprises shall pay the rent directly to the Respondents, commencing from February 2013, till the disposal of the suits. M/s.Best Buy Traders and M/s.Saravana Steel Traders are directed that they shall continue to deposit the monthly rent as per our earlier order dated 30.11.2012 to the credit of C.S.No.877 of 2006 till the disposal of the suits. 18. Celebration of Kandasasti festival:- Insofar as performance of Kandasasti festival is concerned, according to Appellants, one Kumaran (Date of Birth – 05.02.1968) belonging to Appellants' family is a senior most male member and is entitled to perform Kandasasti festival in "Kanda Kottam". The relief sought for in C.S.No.877 of 2006 is to declare that K.P.Arumugam is the senior most male member of the family having right to perform Soorasamharam in the Kandasasti festival in Sri Muthukumaraswami Devasthanam also known as Kandasamy temple, Rasappa Chetty street, Chennai-3. K.P.Arumugam died in October 2010. According to Respondents, one Muthukumar (Date of Birth – 11.10.1971) of K.P.Arumugam family is the senior most male member. 19. Having regard to the observation of the learned single Judge, we do not propose to go into the issue as to who is the senior most male member. The learned single Judge observed that the Assistant Commissioner, HR & CE has been appointed as Fit Person and that the Fit Person will regulate the proceedings for conducting poojas and celebration of festival. The learned single Judge observed that the Assistant Commissioner, HR & CE has been appointed as Fit Person and that the Fit Person will regulate the proceedings for conducting poojas and celebration of festival. Since the parties are in logger heads and in order to ensure smooth performance of Kandasasti festival, it is appropriate to pass an interim arrangement. Accordingly, the Assistant Commissioner, HR & CE, who has been appointed as Fit Person shall involve the Appellants' family and Respondents' family in every alternative year for performance of Kandasasti festival. For the year 2013, the Appellants shall be involved for performance of Kandasasti festival. For the year 2014, the Respondents shall be involved for performance of Kandasasti festival. This interim arrangement to continue till the disposal of the suits. Performance of Kandasasti festival would be subject to the outcome of the suits. 20. It was stated that pending suit, P.Karuppasamy (16th Defendant in C.S.No.877 of 2006) ) has already sold "B" schedule property described in the plaint schedule in C.S.No.877 of 2006. Considering the facts and circumstances of the case, P.Karuppasamy (16th Defendant in C.S.No.877 of 2006) and the purchaser from him shall maintain status quo as on date in respect of "B" schedule property in C.S.No.877 of 2006. 21. With the above observations and directions, both the appeals are disposed of. Consequently, connected Miscellaneous Petitions are closed. However, there is no order as to costs in these appeals.